Dennis Jansen
Audio By Carbonatix
Texas Attorney General Ken Paxton celebrated another win on Thursday when a federal appellate court cleared the way for the state to finally enforce a law prohibiting minors from attending events where drag performances take place.
Senate Bill 12 was passed in 2023 following the 88th Texas Legislature. Also known as “the drag ban,” the bill was designed to ban sexually oriented performances where minors could be present. Drag shows are not explicitly mentioned in the bill, but “sexually explicit performances” are, including ones “in which someone is nude or appeals to the ‘prurient interest in sex.’” Critics have argued that such vague language leaves room for drag performers to be targeted without specifically listing them in the bill. However, in 2023, the law was ruled unconstitutional by a district court, which issued an injunction that was vacated on Thursday.
“I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” Paxton said in a press release following the court’s invalidation of the injunction that kept the state from enforcing SB 12. “It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.”
The panel of judges ruled that the law was blocked prematurely. According to a report from Bloomberg Law, “the Fifth Circuit invalidated the injunction granted by a lower court, pending a review of all applications of the law to see which are unconstitutional and which are lawful.”
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“The district court did not conduct this analysis, nor did the parties brief the proper standard or adequately develop the record,” read the opinion from Judge Kurt D. Engelhardt. “Consequently, we are unequipped to undertake this task in the first instance, and remand for the district court to do so.”
Under the law, business owners can be fined $10,000 for hosting sexually explicit performances in front of kids. Performers can also be charged with a Class A misdemeanor, which could result in up to a year in jail, or a $4,000 fine.
The ACLU of Texas is one of the plaintiffs in the case that halted SB 12’s progress in 2023. Although Paxton is claiming victory, the group says their fight isn’t over.
“Today’s decision is heartbreaking for drag performers, small businesses, and every Texan who believes in free expression. Drag is not a crime. It is art, joy, and resistance — a vital part of our culture and our communities,” reads a joint statement to the Observer from the ACLU of Texas and the plaintiffs of The Woodlands Pride v. Paxton. “We are devastated by this setback, but we are not defeated. Together, we will keep advocating for a Texas where everyone — including drag artists and LGBTQIA+ people — can live freely, authentically, and without fear. The First Amendment protects all artistic expression, including drag. We will not stop until this unconstitutional law is struck down for good.”
